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In today’s United States v. Sheehan, the Second Circuit (Winter, Wesley, Lynch) affirmed a conviction for using a “destructive device” during a “crime of violence,” in violation of 18 U.S.C. § 924(c)(1)(B)(ii).

Wearing a wig, an arm sling and makeup, Sheehan planted an almost-complete pipe bomb in a Home Depot on Long Island. He sent a letter to the store, saying there was a bomb and demanding $2 million so he could “go[] to a warm climate with thin brown girls and drink [him]self to death.” He promised to repay the money in the form of a $2 million “life insurance policy naming Home Depot beneficiary.” The almost-complete bomb was recovered and no one was hurt.

Arrested and brought to trial, Sheehan conceded guilt on what was charged as the underlying “crime of violence” — Hobbs Act extortion in violation of 18 U.S.C. § 1951 — but denied …

The Second Circuit issued summary affirmances in two criminal cases today.

In United States v. Jasmin, No. 15-2546, the Court affirmed the conviction of the former mayor of Spring Valley, New York, on mail fraud and extortion charges. The Court held that the government’s reliance at trial on a mailing not specified in the indictment was not a constructive amendment or variance of the indictment. The government did rely on a mailing that was listed in the indictment, and Jasmin had notice of the additional mailing more than a year before trial. The Court found there was sufficient evidence to support both convictions. In terms of the mail fraud count, the use of the mail was foreseeable to Jasmin.

With respect to the Hobbs Act claim, the Court found the evidence sufficient to support the conviction. Part of the proof on the interstate commerce element involved Jasmin’s travel to …

Defendant Skhar was convicted of Hobbs Act extortion and the interstate transmission of extortionate threats based on a particularly bizarre set of facts. He was a managing partner of a tech company into which the New York State Comptroller was considering investing state retirement funds. An earlier investment in the fund had been cleared, but never closed. That investment had been marketed by a placement agent, a process that was later banned. The current investment was not marketed by a placement agent but was “essentially the same” as the earlier one. While the Comprtroller’s General Counsel was considering the issue, he learned from the New York State Attorney General that the placement agent was under investigation; the General Counsel advised against moving forward with the deal, and that decision was then communicated to …

This very long, and very fact-bound mob-related RICO appeal covers very little new ground. However, it has an interesting discussion of the applicability of Skilling to extortion cases.

Defendant Michael Coppola spent three decades rising through the ranks of the Genovese crime family, ultimately becoming a captain. The particular conduct that resulted in his conviction, and sixteen-year sentence, related to the family’s criminal control of the New York and New Jersey waterfronts in general, and over the longshoremen’s union – ILA Local 1235, in particular. The family used intimidation and fear to extort money from the both the union and trucking companies doing business at the docks. The family also controlled the union directly, through three successive local presidents who were in the family’s pocket.

In United States v. Enmons, 410 U.S. 396 (1973), the Supreme Court held that extortion liability under the Hobbs Act, 18 U.S.C. § 1951, did not extend to violence in pursuit of “legitimate labor ends” that occurs during a lawful strike that is intended to achieve “legitimate collective-bargaining objectives.”

Defendant Markle was convicted of attempted Hobbs Act extortion after a violent confrontation arising from two unions’ turf war over the right to perform “fine sweep work” – the preparation of a floor surface before installing tile – at a construction site in upstate New York. He argued both in the district court and on appeal that Enmons precluded liability.

The circuit disagreed. The Enmons defense is not available if there is no legitimate labor union objective. Courts have generally limited the defense to the context …

Six defendants were convicted of racketeering and related offenses arising from their efforts to break the hold that New York City’s traditional organized crime families had on illegal gambling.

The primary challenge on appeal concerned two RICO predicate acts that alleged violations of New York state’s extortion statute. In New York, extortion involves compelling another person to “deliver … property” to himself or a third person through fear of a future injury. “Property” is any personal property or “article, substance or thing of value … which is provided for a charge or compensation.” The defendants argued that control over illegal intangible property such as a gambling operation was not “property” and could not be “delivered.”

The circuit disagreed. Surveying New York case law, the court first concluded that the state recognizes that intangible property – …